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PC 2009 05 19 CHANHASSEN PLANNING COMMISSION REGULAR MEETING MAY 19, 2009 Acting Chair Larson called the meeting to order at 7:00 p.m. MEMBERS PRESENT: Debbie Larson, Mark Undestad, Denny Laufenburger, Kathleen Thomas and Kevin Dillon MEMBERS ABSENT: Kurt Papke and Dan Keefe STAFF PRESENT: Kate Aanenson, Community Development Director; and Terry Jeffery, Water Resources Coordinator PUBLIC HEARING: BHOJWANI DOCK VARIANCE: REQUEST FOR AN AFTER-THE-FACT VARIANCE TO PLACE A DOCK ON PROPERTY ZONED SINGLE FAMILY RESIDENTIAL (RSF) LOCATED AT 3301 SHORE DRIVE. APPLICANT: GARY BHOJWANI. PLANNING CASE 09-07. Public Present: Name Address Peter Johnson Attorney for Applicant Kelli & Gary Bhojwani 3301 Shore Drive Rachel Livingston 3331 Shore Drive Peter Knoll 3131 Dartmouth Drive Larry Oppegard 6310 Cypress Drive Peter Strommen 3221 Dartmouth Drive Greg & Robin Niemann 3231 Dartmouth Drive Linda & Kirk Dickey 6221 Barberry Circle Tom Merz 3201 Dartmouth Drive John & Kristi Harris 3241 Dartmouth Drive Rick Helling 3672 Landings Drive Tom Niccum Minnetonka Portable Dredging Ken Johnson 3748 Landings Drive Terry Jeffery presented the staff report for this item. Larson: Kevin, you have any questions? Dillon: So in the letter that the property owners sent, and maybe this question is best addressed to him but I’ll ask you anyway, that the language in the subject provision of the city code now being invoked by the City of Chanhassen is not clear. That lack of clarity combined with the March, 2008 guidance received by the contractor from city personnel furthered our contractor’s Chanhassen Planning Commission - May 19, 2009 belief that the dock could be constructed without a permit from the City of Chanhassen, etc, etc. Are you familiar with the guidance that the city supposedly gave in 2008? Jeffery: It is my understanding that the contractor stated that he spoke with someone at the city who had indicated that it would not be needed. We have not been able to corroborate that but that’s not to say that that didn’t take place. Dillon: Okay. That’s the only question I have right now. Larson: Denny. Laufenburger: Thank you Madam Chair. Mr. Jeffery, can you talk a little bit about the pilings for me please. I’m assuming the pilings were pounded down into the bed of the lake, is that correct? Jeffery: That is correct. Laufenburger: From a resource, conservation, protection, etc, what damage is done if those pilings remain? Jeffery: Really not much, to be honest. If we look under the Wetland Conservation Act, you’re allowed a diminimus of up to 200 square feet within a shoreline wetland. The pilings would be under that. Laufenburger: Have you seen these pilings? Jeffery: I have seen these pilings. Laufenburger: Could you just show us where these pilings exist please. And I’m assuming this is a current photo, is that correct? Jeffery: Yeah, this was taken, I met with the applicant on site. I don’t remember the exact date but within the last 3 weeks. Laufenburger: Okay. So the only thing that’s been changed on this photo is the measurements and the arrows and the markings, is that correct? Jeffery: Correct. Laufenburger: Alright. So have you been able to identify where the pilings are? Jeffery: Yes, these would be the pilings. There’s 1, 2, 3, 4, 5 running on this side. 5 running here. 5 again coming back. Laufenburger: So all of those posts, I’m assuming they’re metal posts. 2 Chanhassen Planning Commission - May 19, 2009 Jeffery: No, those are wood posts, approximately 18 to 24 inches in diameter. I think the applicant could probably speak better to the size of those but yes, they’re wooded posts. Round. Laufenburger: So those are the pilings that are driven down into the lake bed to ensure that this is a permanent structure. Jeffery: That is correct. Laufenburger: As opposed to posts that would be taken out around October or September of any year, right? Jeffery: That is correct. Laufenburger: Do you know Mr. Jeffery is it the, is there evidence that ice shifting on Lake Minnewashta would have no impact on the movement of those timbers? Jeffery: Well, prior to any stabilization and the ice coming out, if you look at these 2 here, they were already shifted. I’m not a structural engineer so I cannot speak to what the sheer strength necessary to move that would be. I think there is no guarantee that it wouldn’t shift, but the structure from the supports would diminish that opportunity to shift. But again I’m not a structural engineer. Laufenburger: So clearly if the decision was made that the full 71 feet is not allowed, then some of those posts that are currently above the water, we would expect that they would be removed. Jeffery: That is correct. Once safe ice conditions were present. Laufenburger: Okay. Mr. Jeffery, do you know when the, when the phone call, or when the city was made aware of this construction, do you know were all of the pilings in place at that time? Jeffery: Yes they were. Laufenburger: Okay. So however many there are in there, it looks to be probably 40 plus, they were all in place. Jeffery: Yes. Laufenburger: Okay. Was any of the dock structure, the planking, was any of that in place at the time, do you know? Jeffery: When staff visited the site the joists were in place. Laufenburger: Okay, so that would be the support between the timbers right? Jeffery: Yes. 3 Chanhassen Planning Commission - May 19, 2009 Laufenburger: Bear with me Madam Chair. Larson: Okay. Take all the time you want. Laufenburger: In, on page 3 of the staff report, I’m quoting now. It says, I’m assuming the applicant, entered into an agreement with the city enabling him to complete the first slip, which is what you’re showing there. The first. Jeffery: That’s this area. Laufenburger: Yep. It was concluded that one slip is in compliance with city code. The applicant had two choices. Bring the dock into compliance, and I’m assuming that would mean get rid of everything else, or apply for a variance. The applicant elected to apply for a variance. Do you know did the construction continue at that time? On the stuff beyond that barrier. That temporary barricade, or was that already in place? Jeffery: The decking that you see beyond that barricade is just laying in place. None of it is affixed to the surface. Laufenburger: Okay. Jeffery: So some of it may have been laid out after the fact but I know that they had to bring some materials in and they were trying to get some things in before the ice went out entirely, but to the best of my knowledge no further construction on those two slips occurred. Laufenburger: Okay. Just further in the analysis, this is page 4. Section 6-24. Location restrictions. When the applicant was considering where to locate the dock it was decided that it should not be placed at the previous location. Was that a decision made by the applicant alone based on counsel with neighbors and stuff? Jeffery: Yeah, to my. Laufenburger: Do you have any idea? Jeffery: No, we were not involved. Laufenburger: You were not involved in that decision, okay. Jeffery: No. Laufenburger: Ah, that’s not important. Okay, that’s all I have for staff at this time. Thank you. Larson: Thank you Denny. Kathleen. Thomas: Yes, I do have a question. You talked a little bit about the DNR standards and being compliant with them except for the part where they’re not in compliance with the City of 4 Chanhassen Planning Commission - May 19, 2009 Chanhassen’s ordinances. I guess I want to know a little bit more about what their standards are. Do you happen to know? Jeffery: Their standards are very similar to our’s. Thomas: Okay. Because I just kind of wanted to kind of get a feel as to what their, you know what the DNR’s requirements are, obviously including our code ordinances but I just kind of want to see what else it includes. Jeffery: The DNR has a lot of the same language that we have. That it not be detrimental to significant wildlife habitat or to any plants. That it not obstruct navigation on the lake. That it not obstruct access and that it be of the minimum size necessary to achieve, but they don’t define any what is minimum size. Thomas: Okay, so they don’t denote like a size. Jeffery: Correct. They do have a separate general permit that was issued last year that talks about, if they had a platform on this. It talks about the size of that, and they couldn’t have more than 8 feet. This width of this piece running out could not exceed 8 feet. That’s really it for specific hard concrete dimensions that they have. Thomas: Okay. Alright. That’s all I need at the moment. Undestad: Just a couple Terry. The, in 2006, can you bring that picture up again? Jeffery: Sure. Undestad: So the T dock there and then the 3 images there, are those boat slips or what? Jeffery: This is actually, I’m sorry, this is actually a cover for a boat slip. Undestad: Okay. So with that configuration and they could have what, 1, 2, 3, 4 or 5 boats in there? Jeffery: Correct, yes. Undestad: Okay. Then the language on the cross bar, dock cross bar, it seems to be kind of the gray area there. Have you looked into, I mean what, I mean I realize what Chanhassen’s definition. What we’ve spelled out in there but is there something more to these definitions that we should know about in there? Jeffery: Not at this time. I know staff is looking at what to do with Chapter 6 but no, I think it’s, in staff’s opinion and City Council’s opinion, cross bar is that length parallel to the shoreline. You know that the letter received from the applicant’s attorney contends that that is not the case but it is our interpretation that is that portion parallel to the shoreline. 5 Chanhassen Planning Commission - May 19, 2009 Undestad: Okay. That’s all I’ve got. Larson: Okay, I’ve got a couple ones. Everybody pretty much covered everything. Laufenburger: Did you have any? Thomas: I talked. Larson: That’s okay. I had a question regarding, if you look at the back page where we’ve got the map of all the properties on here. We have got what I assume is Camp Tanadoona. We’ve got the Lake Minnewashta Regional Park. We’ve got various private beaches that are neighborhood beaches. What kind of dockage are they allowed for those properties? Jeffery: Beachlot dockages vary depending on the number of users and what was in their conditional use permit at the time the beachlot was allowed. They’re under an entirely different section of the code for what’s an allowed use. Larson: Okay. But I mean I’m only familiar with a couple of them but I do recall, I think it was one of the private beaches had quite a few boats. Anyway, so I was just wondering if there was. Jeffery: Yeah it again, it varies depending on what was the original agreement. Larson: So the original agreement would be grandfathered in in other words? Say if you had a property that had a larger. Jeffery: No, in fact beachlots were addressed some years back and placed under it’s own section of the city code, so it’s separate from single family residential. Larson: Oh, that was what I was going after. Okay. I think that’s all I’ve got at this point. Dillon: I have one additional. Larson: Oh have you got another one? Dillon: So the previous property owner had 2 docks? Larson: That’s correct. Dillon: Isn’t there only supposed to be 1 dock per parcel? Jeffery: That is correct. Dillon: So did they do that? Jeffery: It was a non-conforming use. It was not compliant with the code. 6 Chanhassen Planning Commission - May 19, 2009 Laufenburger: But to the best of our knowledge couldn’t they, to the best of our knowledge we received no complaints from neighbors about those two docks, is that correct? Jeffery: To the best of my knowledge, no. There’s, when I reviewed the building file for the property there was no evidence that it was ever a permitted use and there’s no evidence of complaints on it. Whether someone took one by the phone I don’t know. Larson: Well in the pictures that you showed, showed that when, at one time that one long dock that’s by itself was on that point. That looks like an issue, but then, is that the same dock or do we even know if it was moved around? Jeffery: No. Madam Chair, this picture’s actually in 1979. I really wanted to utilize it to talk about the safety or navigation concerns that could be associated with a long dock. Larson: Gotch ya. Okay. Alright, anybody. Laufenburger: One more. One more. Larson: Okay Denny, go ahead. Laufenburger: Mr. Jeffery, what’s the actual property line on the water that this property owner has? Actual footage. Jeffery: The actual frontage on the lake, Madam Chair. Utilizing GIS software and the aerial photograph that’s available, trying as best I can to follow the contours, 1,169 feet. Laufenburger: Okay. 1,169 feet. Is it possible to make a determination how many of those 1,169 feet are actually usable and not prevented from being used because of wetland? Jeffery: It would be possible to do so. I’m not prepared at this time to do that. Laufenburger: Would it be possible to just show us kind of in general where you see that would be? Like that stuff up there, would that be usable? Jeffery: This area right here would not be usable area. From the driveway over is wetland. The rest of this, this was, is, was wetland. The rest of this is fairly usable but really this entire area here is wetland. Laufenburger: Okay. So where the shade of the lake, just a little bit north of where you’re drawing in a dock. Go south. Okay, now go north along the shore. Right there. Jeffery: This is, Madam Chair, Mr. Laufenburger, what happens is when they fly their, when the NRCS flies their aerial photography, they do it at different times and then they’re put together as a collage. So this is just actually the difference in the lighting taken at different times. Laufenburger: Okay. So we should not interpret that as wetland, okay. 7 Chanhassen Planning Commission - May 19, 2009 Jeffery: And the 19, well here. 2002, you can see the extent of emergent vegetation. That does show up. Not the best quality photograph but. Laufenburger: Okay. Thank you Madam Chair. Larson: Okay. Anybody else? We’re good. Have we got an applicant please. Please step up to the podium and state your name and address for the record. Gary Bhojwani: Sure. Gary Bhojwani, 3301 Shore Drive, Chanhassen. I’ve got a couple of handouts that I’d like to give you, is that alright? Larson: Sure. Gary Bhojwani: Okay. Okay, basically what I’ve got is an outline of my speaking points and then a couple of exhibits that I’d like to use in my comments. Before I begin, I’ve never done this before so can I ask a couple of procedural questions? Larson: Sure. Gary Bhojwani: Okay. I don’t know how strictly you guys follow Robert’s Rules of Orders. I would hope we could have a little bit of an exchange but I want to make sure I respect whatever the rules are. Larson: Well say what you have to say and then we’ll do some questions and answers. Gary Bhojwani: Okay, so there’ll be an opportunity for me after the initial to interject some comments. Larson: Yes, we’ll ask you if anybody has any questions on what you’ve said, yes. Gary Bhojwani: Okay, good. I noticed obviously that there were some more technical questions along the design of the dock. I’d like to point out that the contractor, Tom Niccum is present. I’d also like to point out that our attorney’s present if you have some questions. I heard you make reference to the document that he provided so if you have any technical questions, either one of them are here, it might be appropriate. Alright. So I’ve tried to put my thoughts together in kind of four broad categories and in some respects the first category is the most important to me. I very much believe in Warren Buffet’s view of the world in that it takes 20 years to build a reputation but 5 minutes to ruin it. It’s absolutely critical to me that regardless of the outcome, to be clear I’d like my request granted but regardless of the outcome it’s absolutely critical to me that no one in this community walk away with the impression that we were trying to break the law or trying to pull some kind of an end run and I’d like to present some facts that I believe will substantiate that. We moved to Minnesota in 2007. It’s our first time living on a lake. I grew up in Illinois. My wife grew up in Wisconsin. We moved here from California. We were not familiar with all of the things that maybe people who’ve lived on lakes all their lives take for granted. We weren’t familiar with that. We started talking to a contractor in 2008 about 8 Chanhassen Planning Commission - May 19, 2009 changing our dock. When we bought the home it had 2 docks in the water and we were looking to make some upgrades and so on, and we talked to a number of folks and found a contractor with the appropriate experience, expertise and so on so we had a discussion. Relief on his assertions, and for what it’s worth I think that Tom Niccum acted in complete good faith and did everything he thought was in the right way. My understanding from our contractor, and my understanding from city staff is that the dock was constructed, the dock that’s in this view right now, is indeed even with the swim platform, even with the 3 slips, the whole bit, is in compliance with DNR standards. My understanding is that the initial rub occurred, if I can use that phrase, when the contractor thought that it was strictly DNR standards and relied on some conversation with city staff. I wasn’t a party to those. I don’t know. You have a letter from the contractor stating that. He’s here present today. I’m sure he can answer any questions. We checked out his reputation. He’s constructed countless permanent docks in the area. Talked to a number of people who have worked with him and as newcomers to the community that never lived on a lake, we relied in good faith on his advice and he in turn relied in good faith on a conversation he had with city staff. So we move forward. I also want to be clear, Mr. Laufenburger I heard you ask some questions about when construction stopped and so on and so forth. I would ask city staff to corroborate this. As soon as we became aware of a problem we stopped. There was no shenanigans whatsoever going on. The only thing to this date that has been completed is the one slip that city staff has acknowledged is in compliance. We have signed a legal agreement saying we won’t use that as a basis to make some kind of an argument on slips 2 and 3 and the platform. So we conceded that. Any decking you see on slips 2 and 3 frankly were simply for safety concerns. They’re just laying there. None of them to this date are fastened. We have 3 small children, hence my reference to the safety concerns. I think that city staff will also concede that there is, at the very least some lack of clarity between Section 6 and Section 20. There are a variety of things that are contradictory between 6 and 20. Little procedural things and more significant things. I’m not the attorney. I’m happy to have the attorney to get involved. I’d rather not do that when he’s here and he can walk you through what our assessments are of that. There’s some difference of opinion as to the definition of a cross bar. Again, our contractor Tom Niccum who’s constructed countless permanent docks asserts that the way the cross bar’s defined in the city code is different. I’m not trying to make that argument. I’m not trying to go down that path right now. I’m simply trying to present the case how we got to where we are, and it’s absolutely critical to me that regardless of what the outcome is here, that there is no question about our intentions or our integrity. We were not trying an end run. We complied with all city requests as soon as we became aware of a problem. We continue to this date to comply with those requests. Now in terms of the actual substance of the issue, in my mind there are 3 broad arguments to be made, and I’ve tried to break them out here in steps 2 through 4. The first I refer to as aesthetics and precedent. In the packet I just handed all of you there’s a picture. This is a picture taken, do I need to put it here? Does that work? Aanenson: Maybe just slide it over, there you go. Gary Bhojwani: Okay. Aanenson: She’ll zoom in on the camera. Yep. 9 Chanhassen Planning Commission - May 19, 2009 Gary Bhojwani: Okay. This is a picture taken yesterday, standing on our dock. The dock in dispute. Directly across the lake, I don’t know what the measurements are, maybe 150-200 yards, that’s there. It’s an apples to oranges comparison. My understanding is that multiple families use these but as you can see it has 7 slips, plus a fair bit of docking for wave runners. The point I simply wish to make by showing you all of this is if someone has an objection on multiple slips on the basis of aesthetics, that ground has been crossed in multiple places on this lake directly within sight of the dock that’s currently in dispute. It’s an apples and oranges comparison because this is used by multiple families. I’m not trying to say it’s the same thing. I’m simply trying to make a point that certainly in terms of aesthetics, that precedent has been breached. The second issue I want to point out, and I’ve got a picture here and it’s not going to show up but this is a picture from the brochure that was used when we purchased the home. There were 2 docks. I’m going to draw your attention up here. Contrary to the picture Mr. Jeffery showed you dated 2006, both docks had canopies. Here’s one dock you can see. On the picture it looks like it just went straight out with nothing over it. That’s not an accurate picture. I’m guessing maybe they took the picture when the dock was in the midst of construction but you can clearly see the canopy on the one that went straight out. There was another dock that went parallel with the shore. You can see here as the swim platform, and you can see here there was a dock and a canopy. There are at least 10 different residents present here I’m sure that can corroborate my assertion that the picture doesn’t reflect what has accurately been the case, both when we bought the home and the 2 years that we’ve used it. You are correct Mr. Laufenburger in that no complaint was ever made, to our knowledge certainly in the 2 years that we lived there and it sounds like to the city’s knowledge in the multiple years that the prior owners had those 2 docks with 2 canopies and a swim platform up and in place. Again there are ample neighbors who can corroborate that was the case for many, many years. Now, I’d ask you to think about when you’re moving from a place like California to a place like Minnesota. You’ve grown up in Illinois and Wisconsin. Would you reasonably assume that when you buy a home from a very reputable, very decent family by the way. When you buy a home from a family that’s been living on that lake for 40 years, and the day you close on the home, the docks are already in the water. It’s part of the transaction. Would you assume that that was legal? We did. In hindsight maybe we shouldn’t have but I’ve got to tell you if I had the same fact pattern again, I’d make the same assumption again. I would assume it was a legal transaction, and that’s important for a significant reason. I want to show you another picture, and this is not to scale. I don’t have Mr. Jeffery’s access to software. I want to draw your attention over to this side. When we bought the home this was the dock configuration. There were 2 docks. One that went straight out where a boat pulled in straight this way, and one that was parallel to the shore where a boat pulled in this way, with a swim platform. That’s the configuration when we bought the house in 2007. That’s the configuration that was maintained in ’07 and ’08. Only in ’09 did we attempt to move to this configuration. Now what’s notable about this configuration, first of all I show you by the square footage that it covers not being any more than the home when it was when we bought it. I’ll come to that in a moment. But significantly we moved it away from the point. We have a number of our neighbors that are waterskiers and we had heard over the years that when they were coming around the point, maintaining this dock that had been there for many years, that we purchased the home with and we ourselves had for 2 years while we lived there. Maintaining that dock posed a hazard. Taking that into account, we moved the dock away from the point. We moved it closer to shore. Again it’s not to scale but I’m trying to illustrate the point. Now, I wanted to put the dock over here. Our contractor, and the reason I want to do that, we have a 10 Chanhassen Planning Commission - May 19, 2009 building here and it would have been perfect to have this be our boathouse and have the dock come out here. Our contractor said Gary, you’re going to cause yourself a lot of problems because this area here is a wetland. It’s got lily pads. Stay away from it. Stay closer to the shore. Strike the balance between getting away from the point but staying away from the lily pads. So we put it over here on the contractor’s advice. The contractor was clearly trying to do the right thing and trying to comply with what he thought were the governing standards, i.e. the DNR. Now, the other point I want to make, if you take a look, I took the drawing that the city provided. The bottom is the city’s drawing, which is a good approximation of what we built. It is exactly the same square footage as what we bought. All we did is take this configuration, turn it and we took the platform that used to be here and put it over here. Truth be told, on the old dock this platform was twice as wide. It was a double. We didn’t increase the amount of square footage we took up from the home at the time we bought it. Now, the next issue for me I refer to on this outline as usage of the lake. Number one, I think it’s critical to remember that what’s at issue here is the width of the dock. Not the protrusion into the lake. There’s no dispute that we’ve stayed within the 50 feet requirement. What is at dispute right now is that we’ve exceeded the 25 foot width. That’s relevant from a boating standpoint. If we were arguing about exceeding the protrusion into the lake by 40 feet, that becomes much more relevant when you’re talking about impeding upon navigable waters. I’ve demonstrated to you and the neighbors again. You could feel free to ask any of them. There’s a number of them here. We’ve moved away from the point. We’ve improved the location of it from a safety standpoint. We’ve avoided the lily pads. Mr. Laufenburger you asked a question earlier about the amount of lakeshore that could be used or built. I forget exactly how you phrased it. I don’t remember, but I think there’s a relevant distinction to be made. When you think about this dock, our measurements are actually 1,260 feet but let’s just use 1,200 to keep the numbers nice and round. Laufenburger: Let’s use 1,169. Gary Bhojwani: Fair enough. 1,169. We’ve walked the property by the way. It measures 1,260 but let’s use 1,169. That, the usage, even at 71 foot equates to approximately 6% of the shoreline that we own. By the city’s statistics, the average shoreline is 125 foot. 6% of that we equate to 7 ½ feet wide docks. Not 25 foot as is permissible. If you use the median of 110 foot, that would equate to roughly 6.6 feet. The point is, if you look at the overall scale, we’re not out of whack. I think the other relevant issue from a layman’s perspective. I’m not an attorney. I don’t have the education or official to practice law. From a layman’s perspective, think about the way we compute taxes. Think about the way we restrict hard cover requirements. There’s usually some sense of proportion. Rightfully so. I’m not arguing that we should be allowed to have 10 or 20 slips. I’m not suggesting that at all. What I am suggesting is that the City allows 3 boats to be moored overnight. It’s completely the same as what we bought the house in 2007. I think it’s noteworthy that there were no complaints before. I’ve shown you other pictures where clearly there are slips much bigger than this one. And probably the final factor I have listed as 4 here, as other…before I go onto that. I think it’s because we’ve tried to be responsible stewards of this beautiful piece of property that we’re lucky enough to own, that we have a substantial amount of neighborhood support. I have a number of my neighbors here. I’d ask them to raise their hands if they’re in support of this dock being completed. We wouldn’t have that kind of support if we were behaving irresponsibly. Now for me the final issue I’ve put under the heading of other, I can’t go back to even what I had. We now know that 2 docks are, what did you call it? Not a 11 Chanhassen Planning Commission - May 19, 2009 conforming use. We’ve already incurred a lot of expense and a lot of effort. Both of the city proposals as were presented are less than what we had. Than what we bought in good faith. Final point, and I don’t, I’m making a leap here. I don’t know this to be true for sure. I know it’s true for my neighbor’s perspective. I assume the city also shares an interest in us not subdividing this property. We have no intention of doing it. We didn’t buy it for that reason. It’s not in our interest, but the point I would simply make is that everything like this that we do increases the likelihood that us or future owners wouldn’t do that. In closing I believe there’s a middle ground to be found here that allows us to get what we’d like, and allows the city to continue to ensure that a very unique piece of property is cared for. With that I guess I’d like to stop and open it up for Q and A. Larson: Alright Kevin, you said you had a question for him. Dillon: Yeah. So the picture you showed with the 7, whatever it is, is that owned by one, is that on one piece of property? Gary Bhojwani: You know I don’t, I believe it’s a neighborhood association. I don’t know for sure. Aanenson: Can I address that, since I did that project. That actual subdivision, there was individual lots that could have gotten a wetland alteration permit. We’ve done probably 3 or 4 of these throughout the city and instead of putting individual lots, we worked with the DNR and put them all in one spot so instead of having 7 individual slips and doing a wetland impact on each of those lots, we combined them together for preservation of the lake so they’re all together on one lot. Audience: That was done…that was marsh. Aanenson: Yes. They got a wetland alteration permit in one spot as opposed to 7 lots. Yes. And the DNR supported that and they recommend that highly, yes. Laufenburger: So that picture reflects compliance. Aanenson: That’s correct. And also just to be clear on the wetland, the beachlot ordinance is a little bit different. I don’t want to spend too much time on that but the beachlot ordinance, and it requires significantly larger lot. Larger shoreland and a bigger acreage requirement than a standard lot. Gary Bhojwani: My understanding is there’s no other private residence on Minnewashta that owns more shoreline than we do. So to the extent that the lot is larger I think... Larson: I don’t know the answer to that. Aanenson: Well it requires 300 feet of shoreline and, 200 feet of shoreline and 30,000 square feet. 12 Chanhassen Planning Commission - May 19, 2009 Gary Bhojwani: We would seem to exceed both of those thresholds with 4 acres and 1,169 feet. Dillon: That’s the only question. Larson: Mr. Laufenburger. Laufenburger: How old are your children? Gary Bhojwani: I have twins that just turned 10 and a boy who’s 13 who hit his first home run tonight. Laufenburger: Just as a point of fact, this compliance with DNR. I think we recognize compliance with DNR is important, but the DNR clearly stipulates as Mr. Jeffery’s identified, that you must also comply with local so the fact that the dock complies with DNR and does not comply with local ordinances, in my interpretation, and that’s our job here, that would not comply. Gary Bhojwani: I understand. The point I was simply trying to make was to explain how we got here. Laufenburger: Sure. Gary Bhojwani: There’s a, I want to be clear. I’m trying to walk a balance here because the attorney and the contractor will tell you that there’s a different of opinion even on that issue. I’m trying not to go down that path. I’m trying to argue from a common sense perspective. Laufenburger: You’re doing a fine job Mr. Bhojwani. Just regarding your last comment, you say that you’re, you have no intention of doing subdivision. In fact if you wanted to do that, as long as it complied with ordinances with the city of Chanhassen you’re certainly welcome to do that. How you deal with your property, that’s up to you. I think I’m speaking that correctly, am I not? Aanenson: Well just a clarification. Just looking at it, I haven’t looked at, that’s the first I’ve heard of this. You have to have 90 feet of frontage on a public street so in order to get another lot in there, it appears that it would need a variance so therefore you could deny the subdivision based on not having frontage on a local street, so that would be a whole separate process so I’m just saying it’s not, it appears that it wouldn’t be just an easily straight forward subdivision meeting requirements of the code. On the face of it. Laufenburger: That’s all the questions I have. Larson: Kathleen. Thomas: Yeah I do. My question is, you talked about like coming to like a medium between in what you want and what the city wants and I’m assuming you’ve looked at the recommendations on what the city is you know offering up as you know a denial or changing it to 16, the variance. 13 Chanhassen Planning Commission - May 19, 2009 Where do you feel like that would be, you would accept any of those things or are you looking for very much your full 71 foot dock and that’s what you’d like so that’s what you’d like to have? I’m just trying to get a feel as to what your you know, where your head’s at. Gary Bhojwani: I understand. Both of the city proposals are less than what we had, and that’s part of the reason I mean frankly with the amount of time and money we’ve spent on this variance process I would have, if I had any idea I would have never done it. But I would really hate to go through all this and end up with less than what we had, which is really the reason I’m pushing that. In terms of being able to find a middle ground, I’m not the expert in this. I’ve never done this before. My attorney tells me there are agreements you can strike with cities about conditional use where we make certain commitments about preserving something or doing something or not doing something in exchange for this and if we violate that then we lose this privilege. This type of thing. I think there is a middle ground to be struck. I don’t know how that process works. I’ve never done it. Thomas: Okay, that’s good. Thank you. Larson: Mark. Undestad: I have no questions right now. Larson: Okay. I think I’m good at the moment too. Very good. Thank you very much. I guess at this point then we will open up the hearing to the public. If there’s anybody that would like to step up to the podium and make a comment, please do so at this time. State your name and address for the record please. Tom Merz: Well, I’m probably the only I don’t know necessarily would be called the dissenter. I don’t like all my notes… Larson: What’s your name sir? Tom Merz: … but my wife tells me I have a tendency to. Larson: Name and address please. Tom Merz: Ah, my name is Tom Merz. I live at 3201 Dartmouth Drive. That’s the north shore. I look directly south to the park and I look directly at the Bhojwani family. Gary Bhojwani: Bhojwani. Tom Merz: Bhojwani, excuse me. You know I’ll try to make this short because some of the questions have been answered. I think that to my neighbors, a lot of them I’m the old guy who lives on the hill and I’ve got nothing better to do than attack the Bhojwani family. Others I’ve spent 4 years in the original, when the Carver County park was originally set up in the late 70’s. I was part of that planning and developing. I was on the Planning Commission for 4 years in the middle 80’s and at that time we were addressing all of the dock issues and we were addressing 14 Chanhassen Planning Commission - May 19, 2009 the planning issues and I think that one thing that we really accomplished during that time that we closed down all of the so called public accesses to the lake and we relocated them into Carver County park, and we have control of a nice, at this point, I feel we have a nice park and it’s nicely controlled for what we call non-riparian boat access of approximately 45 boats. I think that when I listen to Minnetonka Dredging and, you know they’re a 100 year old company. They’ve been around, to have not secured some type of a written approval or some type of a permit, I don’t know where you could build this type of structure without something more than just somebody talking about it. I have problems with the City of Chanhassen in handling this project because I’m the one who made placed the original call in about mid-March and I stated that the dock was under construction and I was informed that yes, we do have an ordinance that prohibits permanent docks and we do have an ordinance that prohibits permanent canopies. Two weeks later I got a call back from the City and they said well we’re sorry Mr. Merz, but no we don’t have such an ordinance. We thought we did but it’s not part of our rules. I said you know it’s unfortunate because a lot of things have been said and a lot of conversation has happened because we had this conversation. I think finally in this variance there is no winners. I think whatever decision you people make tonight is going to come back, be with us for a lot of years. I hope that in your wisdom you’ll come up with a fair decision that will protect the property owners and grant some leniency for Mr. Bhojwani. Finally I think that no matter what’s decided tonight, I hope that we can put this issue behind us and walk out of here and say that you know we’ve always been good neighbors and good friends and whatever is decided tonight will stay here so I hope you have a good summer and enjoy your summer. Thank you. Larson: Thank you. Dillon: I have a question. Tom Merz: Yes. Dillon: So you’ve got two letters to the Planning Commission here. Tom Merz: Yes. Dillon: And the first one I read it, sounds like you were against granting the variance. Tom Merz: Correct. Dillon: The second one, I didn’t really reach a conclusion in what you’re saying here… Tom Merz: At that time I actually had a meeting with Mr. Bhojwani and we discussed it and you know I thought that taking into consideration the man has 4 acres of property, 1,200 feet of lakeshore and he maintains it well, that it is a special piece of property so I thought that my letter was stating that I hope that you people can come up with some type of a reasonable compromise and that was the intention of it. Dillon: So but would you support the variance as it stands today? 15 Chanhassen Planning Commission - May 19, 2009 Tom Merz: With the 3 docks? Dillon: Yeah. Tom Merz: No. Larson: How about for the other one? For the one dock. Tom Merz: Two docks? Larson: The second option, have you got that up there Terry? Tom Merz: That’s a tough, I mean you’re asking me. Well I would think that at that point if you granted. Larson: The Alternate B. Tom Merz: You know what, what is the, what are we accomplishing here? I mean so yes. I would think at this point if you ask me to say specifically to me 2 docks would be acceptable. Larson: What I’m trying to accomplish here is to find out what is okay with, in your opinion as opposed to. Tom Merz: You know like I said I’ve been fooling around with this lake for 30-40 years and it isn’t going to affect me. I probably won’t be here in 10 to 15 years so I think it’s the long term effect. What you’re going to do when they develop the, you know the Camp Tanadoona property. What you’re going to do when they develop some other people. You’re setting a precedent and I think this is an unusual piece of property and it deserves some leniency. Is that 2 or 3 docks? I don’t know. I’d probably support 2. 3, it seems to be very excessive but you’re asking for something that, so yes. That was the way I looked at it, that’s what I was thinking. Larson: Okay. That’s all I was wondering. Undestad: I got one question here too. You were, you been on the lake 30 to 40 years. Tom Merz: Oh, 50 years. Undestad: Okay. The picture they showed before that had 2 docks on there at that point, nobody said anything then when those docks were built or any issues with them. Tom Merz: That’s quality docks and quality stuff, just like this piece of property that he has. This is nothing but quality. Undestad: No, I mean the docks that are on the Bhojwani’s. Tom Merz: What’s that? 16 Chanhassen Planning Commission - May 19, 2009 Undestad: The docks that show on their property back in 2006. I’m not sure when they were built. Tom Merz: Oh I think they’re Niccum docks and they’re the straight metal docks. Undestad: Yeah, these right here. I guess my question is, you were there that long. You saw these docks go in and those were okay at that time in your mind? Tom Merz: Yes. Audience: …permanent docks. Undestad: They’re what? They’re not permanent docks? Larson: Just one moment. You can come up and speak when he’s finished. That’s okay. Tom Merz: Yeah the difference is that they were not permanent docks and the difference is that they do not have permanent canopies that go with permanent docks and that stay there all winter. And that’s my personal agenda but you know that isn’t something that we have rules to live by and I expect everybody, you know when I got involved in this I thought we should all live by the same rules. But that’s a personal issue. It has nothing to, you know we’re here to argue about what he’s allowed to do and not allowed to do. Not whether I think he should have the canopies on it. Larson: Alright. Anybody else? Than you very much sir. Would anybody else like to step up and give their opinion? Please state your name and address for the record. Ken Johnson: Ken Johnson, 3748 Landings Drive. Another one of the old guys. I’m 67, going to be 68 this year. I’m very much in favor of this variance. I personally have a dock that, well I mean our lot is 100 feet wide. I have a dock 2 feet longer than half the length of a football field because it’s only 3 ½ feet deep at the end. So I mean I have considerably more length and out into the lake. I hardly know of a dock that does not have a swim platform on it on the lake. I think that would be absolutely unreasonable to not have that swim platform. I look at this and you see the same type of 2 docks in there that the same amount of dock space. I think it’s really unreasonable, I mean for city staff to come back afterwards and want somebody to tear something out. I think that that’s really unreasonable by your part and city staff. I don’t know who you know is driving this but I’m not impressed with that. This is something that I think is very workable. I also was involved with something with the DNR on raising the lake level on another lake and what they did, and this is something that you can think about. I mean this is all in. I mean the only thing that’s not down is the boards that go across. That in that case, I mean what the DNR did is they granted a 5 year temporary permit on raising the lake level and just adding to a dam and with reviewing it after 5 years, and if there was no issues and no complaints, then it was made permanent. I mean it’s been made permanent at this time and that and I think that’s a very workable solution on your part to grant a temporary variance on the other 2 slips for 17 Chanhassen Planning Commission - May 19, 2009 a period of time and if there’s no complaints during that period of time, you can make it permanent. Thank you. Dillon: Just a note. I think you kind of made a comment about the city staff. They were reacting to a complaint that one of your neighbors phoned in so. Ken Johnson: That’s one of what hundreds of people on the lake. Dillon: It doesn’t matter. I think for them not to respond to that and do the investigation, they wouldn’t have been doing their jobs. So just in defense of them I mean. Ken Johnson: Well I mean it’s doing an investigation and finding out, you know if you look at the facts and you have 2 docks. You have the same number of square feet that, you know everything is being done the way that it’s supposed to be done. No, I am not impressed with city staff in this part. That is my comment and my opinion. Dillon: You’re entitled to your opinion but they were just doing their jobs. Ken Johnson: That’s your opinion. Larson: Okay. Anybody else? Peter Knoll: Peter Knoll, 3131 Dartmouth. My understanding that even if there’s any variation that’s going to happen to this property, it’s going to be done in the winter. So the structure’s going to exist in the summer of 2009, correct? Larson: Right. Peter Knoll: So a recommendation would probably be, from my perspective, if you had a seasonal variance you would have a time period to evaluate the permanent structure to see if there is any further complaint based upon the structure and re-evaluate it in the winter of 2010. Larson: Thank you very much. Would anyone else like to step up and give their opinion? th Larry Oppegard: Larry Oppegard, 6310 Cypress Drive. The Oppegard family is starting it’s 40 summer on Lake Minnewashta and we’ve been involved also in some of the past good deeds that have been happening on Lake Minnewashta. The regional park. Development of the old Leech’s resort and you know I speak in full favor of this. We’re neighbors. We were neighbors for 40 years to the people that own this property and although I can’t speak formally on behalf of the Minnewashta Shores Association, which is 21 landowners, I have done my own informal survey and have found that all those that I’ve talked to would be in favor as well. Thank you. Larson: Thank you very much. Anybody else? John Harris: Hi. My name is John Harris. I live at 3241 Dartmouth Drive. Can you help me out with one slide. It’s the one that has a yellow property line outline and it also shows some 18 Chanhassen Planning Commission - May 19, 2009 other neighboring lots. Like a photo aerial. Yeah, that one. That’s perfect. Can I go up there and just point on the map? Is that okay? Aanenson: Sure. John Harris: Okay. So I live right here. And the Niemann’s are here. They live right here. And the Strommen’s are here. They live right here. And who else? Rachel Oppegard is here and she lives right here. Larry and Mary live, is this it? Larry Oppegard: Next one. Other way. John Harris: Okay, right here. Sorry. And the Knoll’s, I’m not sure which lot is their’s but basically the, I want to say the core of the neighborhood that is in direct view of the Bhojwani property is here and we’re all here in support of the variance and I just want it duly noted and just illustrate with the photo where we live and we’re here in support of the variance. That’s it. Thanks. Larson: Okay, thanks very much. Rick Helling: My name’s Rick Helling, 3672 Landings Drive. I just want to say, we moved in the summer of 2006. Same kind of thing as the Bhojwani’s. Did not live on a lake before. We had our own issues with our dock. Our house was being built when we were out of town. We weren’t even here. There was a complaint from a neighbor, excuse me, very similar to this. Our dock was too far out to the water. Too long. Niccum Docks actually was our builder as well. Brent Niccum. Not Tom. But we heard about it long distance and took care of the problem. I mean we told them you know, we didn’t know any better. When we met our neighbors and found out who it was who complained, we talked to them personally and said you know we’re sorry. We weren’t trying to do anything wrong. I think this is exactly what’s happening here. In the end it all got taken care of. Our dock’s in compliance now but it’s a similar situation. We just, we didn’t know. I’ve never lived on a lake before. We built a nice new house. We’re trying to put a nice dock in and make it fit with the property. Fit with our new home and we unknowingly did not comply with the regulations and once we found out we fixed it. In this situation I think is very similar. The only difference is, you know they put a lot more money into it. This is a permanent structure, which to my knowledge from what I understand tonight is not, that’s not against the compliance. It seems to be okay to have a permanent structure and a permanent canopy. It’s just the square footage that we’re talking about and the 71 feet or, compared to the 25, whatever it may be. His property is obviously the most shoreline on the lake. I think it deserves, everybody who’s spoken tonight will admit it’s a special property. Special family owned it before them. When he bought the property, when the Bhojwani’s bought the property there was a certain amount of dockage that was there. They’re not looking to make it any larger than what they had when they bought it. I think that’s a point that can’t be overlooked. It’s not like they’re trying to build a dock that was twice as big as what they had when they bought the house. The dock is the same size. It’s just that it’s being brought together into one dock. They thought they were doing everything the right way. Unfortunately things happen and they found out they’re not and they’re hoping they can get a little help from the city to make it happen smoothly so I just wanted to say my, from our situation our family, we had a 19 Chanhassen Planning Commission - May 19, 2009 similar deal and I can state for not living on a lake and not knowing exactly how things work, you know you don’t want to come into a new neighborhood like Gary said and step on your neighbors toes and have everybody think oh you’re better than us or you’re trying to do something that nobody else has done before. I can honestly say in our case that was not you know the issue and we have great neighbors. We live on a great lake and I know Gary feels the same way. He’s not trying to do anything that you know, out of the ordinary or try to get special treatment. He just wanted to have a nice dock for his family and have the same amount of dock as he had when he bought the home but just in a different configuration. That’s all I have to say. Larson: Thank you. Peter Johnson: I’m Peter Johnson. I’m the attorney that Gary Bhojwani and Minnetonka Portable Dredging have consulted regarding this matter. I’d like to make just a very brief comment about what my perspective is after reviewing the legal aspects of it. I think the first thing that I think you should keep in mind is that under property law in the State of Minnesota riparian rights are given a very high level of priority in kind of the basket of rights that a property owner has. And in fact you know many of our national and state boundaries, county property, property, individual property boundaries are all set based on what riparian rights will accrue to the property owner. And with that background on Lake Minnetonka a Court of Appeals has just recently ruled that a one size fits all, cookie cutter ordinance that regulates dock users is okay so long as a city looks at the unique characteristics of properties that would suffer an undue hardship and applies a variance process and allows the property owner reasonable use of their riparian shoreland so that’s the legal principle behind this variance application. There does not seem to be much dispute about the fact that this is a unique property based on it’s size and the amount of lineal feet of shoreline. So then the question that’s related to that is whether or not your ordinance allows this property owner reasonable use of his riparian shoreland. And in that regard I noticed in your staff report, on page 7, I think they did a nice job of outlining what the variance request would be in saying that will strict compliance with the dock regulation cause an undue hardship in the enjoyment of the shoreline site. Fair enough. But when they go to apply or suggest a finding to this panel they came up with there’s no physical characteristics of the site that would preclude compliance with city code requirements. That’s not the standard at all. The finding would be, is there a way under your ordinance for this homeowner to make reasonable usable use, reasonable use of 1,200 feet of shoreline. And my answer is, well if a single dock slip 24, 25 feet wide is all that any lakeshore owner will ever be able to use no matter what, and if that’s a reasonable use. Or not an unreasonable restriction on use, well then your, you’ve, you’ve taken the same position that the LMCD did which was we’ve got an ordinance. We’re going to hang in there. We’re going to apply it against every property and a Court of Appeals turned him around and said no, you cannot do that. You cannot place unreasonable restrictions on a homeowner’s use of his entire shoreland so. I think that ruling is pretty clear that the Bhojwani’s should be granted a variance from your ordinance. So if I can ask, or answer questions, I’m happy to try and do so but that is the extent of my comments. Thank you. Larson: No questions? Anybody else? Laufenburger: Before you do, before you close the public hearing I’d request to talk to Mr. Niccum. Is that possible? 20 Chanhassen Planning Commission - May 19, 2009 Larson: You certainly may. Mr. Niccum, are you here? Tom Niccum: I’m Tom Niccum. I live at 1754 Shorewood in Mound. Larson: Okay. Laufenburger: Mr. Niccum, you’ve been building, you or your family have been building docks for quite a while. Is that correct? Tom Niccum: Yep. Laufenburger: How many docks have you built in the city of Chanhassen? Tom Niccum: None. Laufenburger: With exception of this one? Tom Niccum: Right. Laufenburger: This is the first one? Tom Niccum: Right, and we’re separate from what he was talking about Niccum Dock. Laufenburger: Brent? Tom Niccum: That’s separate from us. Laufenburger: Okay. Okay. Mr. Niccum in your letter you, or your, what you shared, you said that you had a conversation with city staff. Tom Niccum: I had a conversation with somebody, yeah. Laufenburger: Who was that person? Tom Niccum: Well it was a lady that I talked to and I talked over the rules the way I was looking at them as far as that T or L and you know to me a T or an L is at the end of a dock and it goes along kind of with what the DNR had been working on about the size of the platforms and the, on the end of the docks and so I looked at that as far as this one was going to be considerably less than 25 feet. And that’s where that came from. You know my interpretation of that. Laufenburger: So what portion of the dock was going to be less than 25 feet in your view? Tom Niccum: The swim platform. 21 Chanhassen Planning Commission - May 19, 2009 Laufenburger: Mr. Niccum. What was it? The swim platform, which is now characterized as 12 feet with 8 feet width, is that right? Tom Niccum: Yeah. Laufenburger: Do you normally pull permits from other jurisdictions, Lake Minnetonka, things like that? Tom Niccum: We’ve built other permanent docks in other cities. Lino Lakes and areas where we did not have to. They complied with the DNR and as long as they complied with the DNR there was no city permits required. So no. On Minnetonka we deal with the LMCD. Laufenburger: Okay. That’s all I had. Larson: That’s all you have? Anybody else? Okay, thank you very much. Any follow-up’s on that? Well with that I will close. Let’s discuss this amongst us guys. It’s got to be Mark. Undestad: Alright. Well, couple things. I mean great turnout and to me it looks like the Bhojwani’s did their part in trying to make things better than the way it was. You know there were some comments about giving them temporary or conditional use permits or try this or try that. You know a lot of good support from the neighbors. Nobody has a problem with it. To me though I don’t think that’s, whether the neighbors, I mean it’s important but I think the issue right now is more has to do with our specific code right and how it reads for that property and what I think is going to happen, even for future properties is some of these 100 foot lots start getting bought up into 2 or 3 lots into 1 lot. Dock sizes and things like that. You know the City, there was a comment that you know somebody needs to look at what to do with Chapter 6. I think we all know there is something with Chapter 6 that needs to get restructured in there. I think when they had the dock system in 2006, or they had 5 boats in there, they’re not trying to put more boats in than what’s ever been there before. You know an issue and a fact that there’s an alternative for an approval of a partial variance on here. The difference between a partial variance and just granting the variance is one boat. I guess I’d look at that as you know more of an all or none type thing. Then again the hardship, the physical characteristics, it is the physical characteristic in my mind is the size of the lot itself. It’s a physical characteristic. It’s a big lot. Nobody else out there has the same issues out there, and again I think that goes back to when Chapter 6 was created it was probably looking more along the 100-125 foot lots and things out there that you know again I believe are going to change over time so. In my mind I think there is an issue. There’s something we’ve got to work out in Chapter 6 and that there is based on the size of that lot and itself as a physical characteristic that I think there’s a reason to allow the entire variance in there in my opinion. Larson: Thank you. Kathleen. Thomas: I kind of am stepping along the same line as Mark as well. I look at, it kind of reminds me of this whole non-conforming dock which is just like the case we had last week. We had the non-conforming house and we had the 2 homes and they were building a large home and it didn’t comply with what the City wanted because they’re going to build something incredibly much 22 Chanhassen Planning Commission - May 19, 2009 more bigger than what was currently on the lot but, and so I look at, it kind of relates in the aspect that they had these docks on the property when they bought the property. They were part of the entire, they were part of the property and so we’re looking now at they’re redoing the docks. Making them better. Making them so we don’t take them out and have them on a shoreline all year round, and they’re the same size. So I look at it kind of, and I looked at the property. It’s 4 acres. No one else has that on the lake and it only kind of makes sense that they are allowed to have the dock size that they do because if it was even split up between, I mean just trying to calculate it out, 4 properties. I mean I now that it can’t you know or it would cost another variance. 4 properties, that could be like a potential of like a 100 foot. You know everybody having their own 25 foot dock. I see that there is something we need to look at with the code but for this property I feel like there is a hardship and it’s large enough. Why the variance? It’s all or nothing I think and I’d be for it. Larson: Denny. Let’s see. I think that, as I read this, it’s really hard to ignore the fact that the Bhojwani’s have spent a lot of money already and whether they knew it or not, the spending of that money was at risk and I think their spending of that money was at risk because, I’m not going to affix blame here. The amount of money that was going to be spent for the contractor, who Mr. Bhojwani said he trusted his judgment, that he didn’t do complete due diligence on securing exact approval. Exact specifics. I think that’s a risk that Mr. Bhojwani should have perhaps pushed a little harder on. So I think about if this variance came to us before any money was invest in putting pilings in or putting the dock in, how might we respond and I think this is an exceptional property and I think it requires an exceptional view of what is acceptable for reasonable use of the dock. I appreciate that the previous owner may have had a non-conforming dock, but there was no complaints. Apparently there were no complaints about that dock. What Mr. Bhojwani and, Mr. and Mrs. Bhojwani are trying to do in describing their intent in making this dock no more intrusion than the total square footage of the previous dock, I think that’s warranted. I look at one element of this that is just really sticking out for me and that’s the proportional nature of this dock as compared to the other properties. Even if we, even if we say that the visual, usable portion of this property is even just half of the 1,169, that’s still over 500 feet of usable and proportional, 25 feet on a 100 foot wide property would be 125 foot wide on this property, even by it’s minimum standards. My perception of Mr. Bhojwani is that he’s a good neighbor. I think we should feel good in Chanhassen about having the Bhojwani family in Chanhassen. I knew the previous owners. I know that they were stand up citizens in the community. I think the Bhojwani’s, while they’re here, they will be the same. So I’m in favor, along with what Commissioner Undestad said, I’m in favor of granting this a full 71 feet with a stipulation. I don’t know much about ice movement of dock pillars and stuff like that. I know there’s a reason why my brother in law takes his dock out of Maple Lake every year because he wants to protect the dock so, I don’t know what kind of damage ice movement may do on these pillars. Certainly we have evidence, as Mr. Jeffery showed in one of the photographs, that two of those pillars that were not supported had some movement. I don’t know if this is possible but I’d like to take ongoing inspection of that dock to ensure that over time it does not deteriorate with ice movement. If there is any deterioration steps are taken to ensure that it’s returned to it’s original point of view so that’s my view. Larson: Okay. 23 Chanhassen Planning Commission - May 19, 2009 Dillon: I think I can probably answer your rhetorical question on what would we do if this was brought to us before work had started. It would be to deny it so I mean, I don’t think we, you know I mean that’s just the way things go usually. I mean there’s a little leverage that the homeowner has right now and that even setting all that stuff aside, I mean I think the most important thing to me is the people that showed up here tonight that are going to be most, if you want to adversely affected, either aesthetically or otherwise are, don’t feel it. I mean they’re very much in favor of this so in addition to the ones who spoke, there’s a whole slew of letters here. Although they use the same 3 bullet points in each letter, I mean you know if, but still they could have said, if they felt otherwise I’m sure they would have said so. So given the fact the scale of the property, the proportionality of the dock, the consistency with what was previously there, which I think is one of the biggest issues for me. You know kind of no good deed goes unpunished. I mean trying to do the right thing and get a new dock. I’m in favor of approving the variance and so that’s what I’ll say. Larson: Okay. Well, my thoughts on this are, first of all clearly the Chanhassen has city codes put in place for a reason, and the reason for that is very well thought out and it’s to protect the lake. It’s to protect other homeowners and the integrity of everything that is on the lake. That said, many good points have been made here this evening. I know, and I felt just even by reading the staff report and everything we got prior to this meeting, that the Bhojwani’s intent was honorable. I believe that they went into this with good intentions. Wanting to do it correctly. They put faith in the dock builder and maybe that, like Denny had said, wasn’t necessarily the most correct way to do that but, there are other parts of the lake where there are multiple docks. However as was, I’ll echo what these guys had said earlier, is if you were to put a dock on each property and each homeowner was allowed a 25 foot wide dock, all the way around the lake, it would be a lot of docks. I think what Mr. Bhojwani is requesting is reasonable. He’s been very careful as to not disturb the wetlands. The placement of the dock is good. Let’s see here, what else did I want to mention? The fact that this property could equal you know 5 to 8 additional properties, like Kathleen said, you would have that many more docks if that property were able to be subdivided, which we won’t bother with that but it is a unique property. The majority of the neighbors are in favor. I don’t think it’s setting a precedence in the city of Chanhassen on this lake just because it is a unique property. Going forward, if there were another request such as this, I think each request should be decided on a case by case basis. Let’s see here. The location I think I mentioned that. Previously there was a dangerous dock out towards the point, which was bad for waterskiers. The way he’s got this situated is much better. It’s really not the Planning Commission’s place to alter or change the city code. It is however a place where we can discuss what makes sense, and I think in this case my opinion is that it would make sense to allow the variance, the full variance as it stands. Dillon: So Chair? Larson: So like a, we’ve got two options here. One’s to deny and then one’s to go for Plan B. What if we want to approve? 24 Chanhassen Planning Commission - May 19, 2009 Aanenson: I have scripted a third motion and amended the Findings of Fact if someone wants to make a motion first, then I’d be happy to help you amend the Findings of Fact that would reflect that. Undestad: Just a quick comment here. Couple things. I guess on the, would we approve it or not or look at it based on if there was any money spent prior to the, I don’t think that’s accurate. I mean whether you spent money or had it in place or did anything, we’d still look at this based on does it make sense. Dillon: Oh I know. I understand his rhetorical question and I was giving a rhetorical answer. Undestad: Just didn’t want it out there. And yeah I guess the other point was, you know whether or not we use language right here in the recommendation. Aanenson: Yeah, I guess what I would suggest if you wanted to, if you were choosing to recommend approval of the application, if you went with the second motion and the Planning Commission recommends that the City Council approve Planning Case 09-07 as shown on plans dated April 17, 2009. That would be. And then you would strike 1 through 4. And then I’ll let you, if you want to add some other qualifications, you had some other discussion points there. And then if we could just go to the Findings of Fact. We should also have those matched. So if you go to the second Findings of Fact. I’m on Alternative B. So the findings there, the second finding, undue hardship. I’m assuming what you’re leaning towards, and I’ll let you clarify that, is that you’re leaning towards since this is the largest property in that immediate area, 3.89 acres with a shoreline of 1,169 feet, that would be the rational nexus for granting this variance. What I’m understanding from what you’re saying. If that helps. Larson: Is anybody ready to make a motion? Laufenburger: Yeah, I’ll try it. Undestad: Can we have one question answered though just before we do that? Larson: Yeah. Undestad: Now the comment you made about having this inspected or looked at, is there something in place… Aanenson: Yes. With a variance you can add a reasonable condition so if that’s something you wanted to have staff monitor on an annual basis, that’s fine. You can just make that one of the conditions then of the motion. Dillon: But even if that is a friendly amendment or whatever it is, I mean it’s up to the City Council to decide. Aanenson: That’s correct. You’re just recommending for their review, that’s correct. 25 Chanhassen Planning Commission - May 19, 2009 Undestad: Yeah. Laufenburger: You should clarify that, that we make recommendations. Aanenson: She did, yeah. Laufenburger: Did she do that? Aanenson: I think so, yeah. Larson: Yeah. Laufenburger: Madam Chair? Larson: Yes. Laufenburger: I move that the Planning Commission recommends that the City Council approve Planning Case 09-07 as shown in plans dated April 17, 2009 for a 46 foot variance request from the allowed 25 foot cross bar for docks as outlined in the staff report, and adopt the attached Findings of Fact letter B for approval with an additional condition that the applicant allows his permanent dock to be inspected by city for review of appearance and fitness of use on an annual basis. Larson: Do we want to have an end to that? Forever? I mean do we give a. Laufenburger: Well by definition the applicant, as long as the applicant is the owner of the property because if he sells his property then he’s no longer the applicant. Larson: Got it. Okay. Do I have a second? Dillon: Second. Larson: Okay. I’ll take a vote. Laufenburger moved, Dillon seconded that the Planning Commission recommends that the City Council approve Planning Case 09-07 as shown in plans dated April 17, 2009 for a 46 foot variance request from the allowed 25 foot cross bar for docks as outlined in the staff report, and adopt the attached Findings of Fact as amended, with the following condition: 1. The applicant allows his permanent dock to be inspected by the City for review of appearance and fitness of use on an annual basis. All voted in favor and the motion carried unanimously with a vote of 5 to 0. Larson: Motion passes. 26 Chanhassen Planning Commission - May 19, 2009 Aanenson: For the record Madam Chair, for those in the audience. This does require a meeting th before the City Council which is scheduled for June 8, so this will be heard at the City Council th on June 8. th Larson: June 8, okay. Thank you. APPROVAL OF MINUTES: Commissioner Undestad noted the verbatim and summary minutes of the Planning Commission meeting dated May 5, 2009 as presented. Acting Chair Larson adjourned the Planning Commission meeting at 8:35 p.m. Submitted by Kate Aanenson Community Development Director Prepared by Nann Opheim 27